Many immigration attorneys and the employers they counsel have recently reported significant delays in receiving certified PERM applications by mail from the Department of Labor (DOL). The Labor Certification process for foreign national employees (commonly referred to as "PERM") requires employers to test the job market and only if they cannot find a minimally qualified U.S. worker for the offered position can they submit the PERM application to DOL to be certified. Once certified, employers can then file the Immigrant Petition for Alien Worker (Form I-140), the next step for foreign national employees to be eligible for filing their green card applications.

Earlier this year, attorneys began reporting significant delays in receiving Prevailing Wage Determination requests from DOL. These delays persist, and in addition to new delays with receipt of final PERM certifications by mail, attorneys are now also indicating they have seen an increase in the time it takes to get email confirmation of the approval. All of these delays are alarming in light of the fact that certified PERMs are valid for a limited time, impacting employers seeking to file Forms I-140 on behalf of employees and for some of those employees to file their I-485 application (commonly referred to as the "green card" application"). Immigration attorneys have notified DOL they are seeing delays of up to three weeks, and in response the agency stated that PERM applications certified on or after October 24, 2017, will be mailed within the standard mail delivery processing times. While this is welcome news, it is imperative that all employers remember that a certified PERM application remains valid for only 180 days, during which time the I-140 must be filed.

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LABOR CERTIFICATION

The sponsoring employer must file a Labor Certification (a.k.a. PERM) with the Department of Labor certifying that there are ?no willing and able? U.S. workers to do the job the foreign national will perform. This is usually proved by submitting proof of advertising for the specific position, skill requirements for a particular job and verification of the prevailing wage for a position and the employer?s ability to pay the offered wage;

EB-1 PRIORITY WORKERS

28.6% of worldwide employment based preference level, plus any numbers not required for fourth and fifth preferences. Many foreign nationals would like to file under this priority because there is usually no wait time since the priority dates are usually current. In addition, there is no need to file a Labor Certification.

APersons of extraordinary ability

BOutstanding Professors and Researchers

CManagers and executives subject to international transfer to the U.S.

EB-2 PROFESSIONALS WITH ADVANCED DEGREES OR PERSONS WITH EXCEPTIONAL ABILITY

28.6% of the worldwide employment based preference level, plus any numbers not required by the first preference (EB-1). It is important to note that it is easier to obtain an approved I-140 under EB-3 than EB-2 because the job requirements for EB-2 are closely scrutinized by USCIS. Nevertheless, it is advantageous for foreign nationals of oversubscribed countries (China, Mexico, India and the Phillipines)

FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER

Must be filed by the sponsoring employer together with the Certified Labor Certification and evidence demonstrating the ability to pay the prevailing wage (i.e. federal tax returns, audited financial statements and annual reports). The sponsoring employer will also need to prove that the company exists by providing pictures, a copy of the office lease, contracts, etc. It is important to note that obtaining an approval of Form I-140 does not confer status and that the approval is entirely contingent upon the employee upon remaining in the same job.